A Whole New World: 4 Things to Watch for and Consider in the New OH&S Act

by Christopher Spasoff, guest blogger

Founder & OH&S Lawyer, F2 Legal Counsel

It’s now been just over a month since Alberta’s new Occupational Health and Safety Act took effect. The Act introduced not only a number of new obligations and stakeholders, but an entirely new concept of workplace health and safety that extends beyond the worksite itself, and includes things like domestic violence, psychological health, and social well being. To put it mildly, the changes are aplenty, and are taking workplace health and safety in Alberta to a place it’s never been.

Industry and academics have spent the past several months opining on what the changes mean for employers and workers alike, in both a legal and practical/operational sense. Similarly, much has already been said and written on everything from whether the changes are a good thing or a bad thing, to whether they’ll even prove effective. That, of course, remains to be seen in the coming months and years, as employers implement, officers enforce, and courts ultimately interpret them.

Suffice it to say, there’s a lot more to come. For the time being though, the changes are neither good nor bad. They simply are. And as you wade through the mounds of information – and unfortunately some misinformation – there are a few things in particular to consider:

1. Signing up for the Alberta Government’s Health and Safety eNews.

Each month, the Alberta Government publishes it’s Health and Safety eNews, an electronic newsletter covering hot topics and current issues in occupational health and safety. The June 2018 version, for example, included clickable links to a number of additional resources from the Alberta Government (formerly known as “Bulletins”) to aid parties in applying and interpreting the new Act. One such announcement includes information about a free introductory e-course currently offered for Health & Safety Committees and Representatives to help committee co-chairs and representatives meet employer requirements.

While helpful and definitely worth a read, one word of caution: the materials are neither law, nor legally binding. They are created by and reflect how Occupational Health and Safety (OH&S) views and interprets the changes, at the time of publication. Others, including the courts (who will ultimately have the final and only say that matters), may view things quite differently.

2. Whether there is a difference between a “dangerous condition” and “hazard”.

Under the previous version of the Act, workers had a duty to refuse unsafe work in circumstances involving an “imminent danger” (i.e. a danger that was not normal for the occupation, or a danger under which a person engaged in the occupation would not normally carry out the work). In the new Act, that duty changes to a right to refuse unsafe work in circumstances involving a “dangerous condition”, with no definition as to what actually constitutes a “dangerous condition”. While the lack of a definition in the new Act may suggest that the right to refuse is now intended to apply in a much broader range of circumstances, it is also raises several questions; not only in relation to what actually constitutes a “dangerous condition” (i.e. is it different than a “hazard”, which is defined as a situation, condition, or thing that may be dangerous to health and safety?), but also in relation to an employer’s obligations once a “dangerous condition” has been identified.

While employers are, and have always been, under a legislated duty to eliminate “hazards”, there has always been a corresponding recognition in the legislation that, in some cases, elimination may not be possible. In those cases, the legislation permitted employers to “control” the hazards instead.

Therein lies the potential issue. Assuming that a “dangerous condition” is something different than a “hazard” (which it would seem to be, since were it otherwise there would be no need for the introduction of the new term), it is entirely possible for a “dangerous condition” to continue to exist, notwithstanding that the “hazard” in question has been controlled to the lowest level possible.

The question then arises: if the “hazard” itself is controlled, what does it mean to say that an employer must still “remedy” (as per the new Act) the “dangerous condition”?

3. What constitutes a “near miss” for the purposes of reporting to OH&S?

One of the most talked about changes under the new Act is that “near misses” must now be reported to OH&S. However, if you’ve had occasion to look through the Act itself, you’ll quickly realize that the term “near miss” is, shall we say, missing. The section that gives rise to the new reporting obligation actually refers to any injury or incident “that has the potential of causing serious injury to a person”. While it’s clear that the section includes people even if they aren’t workers per se (i.e. given the use of the term “person”, such injuries or incidents involving visitors and the like must also be reported), exactly what constitutes an injury or incident that “has the potential of causing serious injury” isn’t nearly as clear cut, and is something that even OH&S appears to be having issues with.

As indicated on its official Government of Alberta website, OH&S refers to a “potentially serious incident” (PSI) as any incident where a reasonable and informed person would determine that:

(Of interest, (ii) of the OH&S definition requires a party to essentially report (and admit to) having broken the law – i.e. failing to have reasonably controlled a hazard, contrary to s. 9 of the Occupational Health and Safety Code). After providing the above definition for a PSI, OH&S then provides a clickable link to report a PSI online. Following the link takes you to a questionnaire that is designed to see “if you need to report”. However, the questionnaire doesn’t actually take any of the aforementioned definition into account, and simply asks if the person suffered an “injury”. If you answer “yes” to that question, and are the employer at a work site in Alberta, you’re advised that “Based on your answers, a PSI is required”. In other words, despite the way OH&S itself has chosen to define a PSI, if you follow the online reporting system you’ll find yourself reporting all injuries to OH&S and not just the “near misses”.

As pointed out earlier, it’s important to note that the materials published by OH&S (including those on its website) are neither law, nor legally binding. Given both that and the lack of clarity and apparent inconsistencies, it is strongly recommended that you obtain the advice of legal counsel prior to making any such report – particularly in light of the fact that the “as soon as possible” requirement does not apply to the reporting of “near misses”.

4. The first time OH&S officers exercise their powers in relation to a private dwelling.

The new Act added two important qualifiers to what has often been referred to as the “private dwelling exemption” (i.e. the section of the Act that provides certain work in, to, or around a private residence is exempt from the application of the Act).

The first qualifier applies to situations where you have a live-in nanny or caregiver. Even though they may be an occupant of the home, they are no longer included in the private dwelling exemption. The Act applies. They are now considered to be a worker, and you are their employer.

The second qualifier is even more significant. It applies to situations where work that’s being performed by the owner or occupant that lives there, is being done for an employer that doesn’t live there. Simply stated, if you are an employer and you have people that work from home or take work home with them, their home is now a “work site”, and you are responsible for it just like you are responsible for any other work site under the Act. In other words, telecommuting – which for many employers is the way of the future – just became a lot more onerous.

This change to the private dwelling exemption is significant, and hasn’t garnered nearly enough attention. Particularly, given that it doesn’t appear to be merely an unintended consequence. On the contrary, aside from clarifying some definitions and renumbering some sections, the change to the private dwelling exemption was really the focal point of the one and only amendment that was made to Bill 30 (the bill that gave life to the new Act). And, there is now a statutory protection in place that specifically prohibits OH&S officers from entering private residences without consent.

Shining, shimmering, splendid?

I’ve chosen to steer our magic carpet in the direction of the above four points in this post, and in so doing, hope to have opened your eyes to a new (fantastic) point of view. That being, that we truly are in a whole new world, with every turn a surprise and a hundred thousand things to see (ok, perhaps not that many!). And while that will inevitably mean new issues and questions to pursue (some of which will no doubt end up in the courts and give new meaning to the phrase “red letter”), one thing is crystal clear. Having come so far, we’re not going back to where we used to be.

About the author: Christopher Spasoff is one of only a handful of lawyers with experience on both sides of the OH&S regulatory regime, having spent time as both an OH&S Crown Prosecutor and OH&S Defence Lawyer. Often sought out for his practical, easy-to-understand advice and common-sense approach to problem solving, Christopher left the Crown in May 2014 to establish F2 LEGAL COUNSEL, where he now practices exclusively in the area, and advises Alberta employers on a variety of OHS issues including stop work orders, workplace investigations, and the defence of OHS charges. A sessional instructor with the University of Alberta’s Health and Safety Law class, Christopher is passionate about sharing his knowledge and experience whenever possible.